The petitions for writs of certiorari are granted.” Those eight words, contained in a terse November announcement from the Supreme Court, signaled that the nation’s capital will soon be hit by a constitutional hurricane stirred up two years ago by disregarded legal flaps in far-off courts. At issue is the Obama administration’s contraception mandate, under which all health plans—including those provided by employers such as Catholic hospitals—must provide, free of charge, all FDA-approved contraception, including the morning-after pill.
The challenges the court will hear were filed in 2012 by Hobby Lobby Stores and Conestoga Wood Specialties.
Both companies operate in accordance with the religious beliefs of their owners, beliefs that include strong moral objections to abortion-inducing drugs. Thus, their lawsuits charge that the mandate infringes upon their religious rights, as guaranteed by the First Amendment and the Religious Freedom Restoration Act (RFRA) of 1993, by forcing them to pay for employee health insurance that covers such drugs.
Yet to truly understand how a couple of lawsuits filed in flyover country created a legal tempest strong enough to blow the administration’s lawyers back into the Supreme Court—defending Obamacare once again, and in the run-up to the 2014 election—it’s necessary to understand what these cases are not about. These suits have nothing to do with the proposition that corporations are people. Nor do they concern any attempt to force religion on employees or deny women basic contraception coverage.
This litigation is about something much larger: whether the government can issue an arbitrary bureaucratic decree that negates a fundamental constitutional right as well as an act of Congress. And no matter how many phony “accommodations” the White House might make, that is the upshot of the contraception mandate. It explains why the legal backlash over the issue has far exceeded that which Obamacare’s individual insurance mandate produced.
According to the Becket Fund for Religious Liberty, 87 lawsuits have been filed pursuant to the mandate. Clearly, then, the owners of these two companies are not alone in their belief that the administration has overstepped. The lawsuits at issue languished in the court system for two years, though not without success. In Hobby Lobby v. Sebelius, the Tenth Circuit Court of Appeals came down resoundingly on the side of religious liberty, forcing the government to file an appeal with the Supreme Court.
In Conestoga Wood Specialties v. Sebelius, however, a three-judge panel representing the Third Circuit Court of Appeals ruled 2-1 that “for-profit, secular corporations cannot engage in religious exercise,” the beliefs of their owners notwithstanding. Dissenting Judge Kent Jordan wrote, “The government takes us down a rabbit hole where religious rights are determined by the tax code.” Conestoga petitioned the Supreme Court to review this ruling last September.
The two cases were consolidated when the justices agreed to hear them (the case is now styled Sebelius v. Hobby Lobby because the government filed the initial cert petition with the Court). For oral arguments, which most expect to take place in March, the Court has allotted a single hour—which, mercifully, will keep the presentations succinct and prevent the case from devolving into the kind of verbal marathon that we endured over the individual mandate.
Speculation is a dangerous game, of course, but the Court’s choice of these two cases may offer a clue into the justices’ intentions. Conventions require that the parties involved in a dispute distill the prolix language of their suits and countersuits down to concise “questions presented” for the justices. Hobby Lobby’s response confines itself to the Religious Freedom Restoration Act: “The question presented is whether the [contraception mandate] violates RFRA by requiring Respondents to provide insurance coverage for contraceptives in violation of their religious beliefs, or else pay severe fines.”
That doesn’t mean, however, that the deeper constitutional issues are off the table. Conestoga’s petition asks: “Whether the religious owners of a family business, or their closely-held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage Mandate of the ACA.” The term “free exercise,” used without reference to RFRA, is an obvious invitation to the Court to consider the mandate’s First Amendment implications.
A third petition filed by Autocam Corporation, a company owned by a Catholic family with objections to contraception of all types, was denied by the Court. This combination suggests that the justices do not want to deal with the complex question of birth control in general, but that they see a consolidated Hobby Lobby–Conestoga case as an opportunity to rule, within easily recognizable bounds, on the mandate’s implications for both the RFRA and the First Amendment.
It’s clear that this possibility was a concern for administration lawyers even before the justices agreed to hear the two cases, and the administration’s lawyers did their best, of course, to prevent Hobby Lobby and Conestoga from reaching the Supreme Court. Having failed in that effort, they will now try to convince the justices that the owners of Hobby Lobby and Conestoga have not been “substantially burdened” by the mandate. Will they succeed? Not if the Court behaves rationally. (However, as we saw with Justice Roberts’ bizarre ruling on the individual mandate, this is hardly a given.)
There is cause for hope. UCLA law professor Eugene Volokh writes that, “Hobby Lobby likely has a good case as to the claim that the contraception mandate substantially burdens religious exercise, because the mandate requires Hobby Lobby to do something…that Hobby Lobby’s owners believe is religiously forbidden.”
Richard W. Garnett, professor of law at the University of Notre Dame, agrees. He began a recent column for the Los Angeles Times by reminding progressive readers that it was President Bill Clinton, not exactly a right-wing extremist, who signed the RFRA: “What Clinton said when he signed the act into law is worth remembering today: ‘Let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions.’”
Garnett goes on to make it clear that he has little patience with the legal arguments of those who want business owners to check their faith at the door. “The government and others argue that the [owners’] religious beliefs are irrelevant because they’ve freely chosen to enter the rough-and-tumble world of commerce and that, in any event, the exercise of religion is for individuals, not corporations. But Hobby Lobby’s lawyers…will be on solid ground when they explain to the court that both of these arguments are misguided.”
And, demonstrating that this view is held by observers of every political persuasion, we find much the same opinion expressed in the Huffington Post, of all places. Feisal G. Mohamed of the University of Illinois writes, “Under current case law, it is almost certain that a closely held corporation found sincerely to claim freedom of religious expression would enjoy some kind of First Amendment protection.”
But the Obama Department of Justice says the business owners are not so entitled. In its filings, the DOJ says the question at hand is: “Whether the requirement that non-exempted, non-grandfathered group health plans include coverage of contraceptives violates the Free Exercise Clause of the First Amendment.” This circular formulation, like the arguments that follow in support of it, captures the incoherence of the government’s position.
The word “requirement” is used passively, as if the mandate were something other than a demand made by the federal government. Likewise, the terms “non-exempted” and “non-grandfathered” are used as if they describe natural states of nature rather than conditions newly imposed by the federal government. The word “health plans” is used as if such things have a separate and distinct existence from the business owners who must pay for them. This is pettifoggery gone wild.
This issue will not be settled once and for all until the Supreme Court hands down its ruling in June. Meanwhile, millions of Americans who wish to live their faith will be left swinging uncomfortably in the wind.